*1 In a proceeding pursuant to SCPA 2205 and SCPA 2206, inter alia, to compel an accounting of trust assets, the petitioner appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Richmond County (Gigante, S.), dated February 22, 2012, as, in effect, denied that branch of her petition which was to invalidate those portions of a document dated June 1, 2006, entitled “Amendment to the Arthur Stuart and Muriel Stuart Living Trust Agreement dated February 20, 1998,” which amended the original terms of an agreement entitled “Arthur Stuart and Muriel Stuart Living Trust Agreement” dated February 20, 1998, by altering the beneficiary allocation for assets designated as “Trust A” and by replacing the petitioner as successor trustee, and Ellen Stuart, Barry Stuart, and Dennis Trimper cross-appeal, as limited by their brief, from so much of the same order as, in effect, granted that branch of the petition which was to invalidate the portion of the above-mentioned document dated June 1, 2006, which amended the beneficiary allocation for assets designated as “Trust B” and “Trust C.”

ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the petition which was to invalidate that portion of the document dated June 1, 2006, which amended the beneficiary allocation set forth in the Arthur Stuart and Muriel Stuart Living Trust Agreement dated February 20, 1998, for assets designated as “Trust A,” and substituting therefor a provision granting that branch of the petition; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On February 20, 1998, Arthur Stuart and Muriel Stuart (hereinafter the father and the mother, respectively, or together the decedents) entered into an agreement entitled “Arthur Stuart and Muriel Stuart Living Trust Agreement” (hereinafter the subject trust), which, inter alia, allocated certain trust assets to three of their children as follows: 40% to the petitioner, Shari Weber, 30% to Ellen Stuart, and 30% to Barry Stuart (hereinafter the original beneficiary allocation). The subject trust also named these three children as successor trustees. On June 1, 2006, a few years after the father's death, the mother executed an amendment to the subject trust (hereinafter the 2006 amendment), in which she changed the beneficiary allocation so that each child received 33% of certain trust assets, and replaced the petitioner with Ellen Stuart's husband, Dennis Trimper, as successor trustee. In 2008, the mother passed away, and, thereafter, the petitioner commenced this proceeding to declare the 2006 amendment to the subject trust null and void in its entirety, arguing that the subject trust became irrevocable upon the father's death. The Surrogate's Court determined that the subject trust was partially amendable, and, as such, the mother had the singular authority to replace the petitioner as successor trustee and to amend the original beneficiary allocation, but only with respect to certain trust assets designated as “Trust A,” and not those assets designated as “Trust B” and “Trust C.” We conclude that, while the Surrogate's Court properly determined that the subject trust allowed the mother to replace the petitioner as a successor trustee, the mother's 2006 amendment was invalid insofar as it relates to changing the original beneficiary allocation for any of the trust assets, including those in “Trust A.”

The respondents further argue that Article IV(G) of the subject trust expressly reserved the right to a surviving spouse to amend the beneficiary allocation. Although this issue is raised for the first time on appeal, we may review it because it presents a question of law which could not have been avoided if brought to the attention of the Surrogate's Court (see Olim Realty v. Lanaj Home Furnishings, 65 A.D.3d 1318, 1320, 885 N.Y.S.2d 750; Matter of State Farm Mut. Auto. Ins. Co. v. Olsen, 22 A.D.3d 673, 674, 802 N.Y.S.2d 725; Matter of Village of Westbury v. Straehle, 307 A.D.2d 931, 932, 762 N.Y.S.2d 892; Block v. Magee, 146 A.D.2d 730, 732, 537 N.Y.S.2d 215). Specifically, Article IV(G) stated that a surviving spouse could designate the remaining principal “to or for the benefit of such one or more of my issue and in such amounts as my spouse designates by a duly probated Will which makes specific reference to the limited power of appointment,” otherwise the original beneficiary allocation would apply. Contrary to the respondents' contention, in light of Article IV(G), the mother's 2006 amendment of the original beneficiary allocation was ineffective as she did not comply with the terms set forth in the subject trust for changing the beneficiary allocation (see Matter of Perosi v. LiGreci, 98 A.D.3d 230, 235, 948 N.Y.S.2d 629; Matter of Dodge, 25 N.Y.2d 273, 303 N.Y.S.2d 847, 250 N.E.2d 849; Whitehouse v. Gahn, 84 A.D.3d at 951, 922 N.Y.S.2d 546; Matter of Goetz, 8 Misc.3d 200, 793 N.Y.S.2d 318).

Accordingly, the Surrogate's Court erred in determining that the mother's 2006 amendment was sufficient to alter the original beneficiary allocation with respect to trust assets in Trust A,” but properly determined that the original beneficiary allocation applied to “Trust B” and “Trust C.”

To the extent that the petitioner argues that the mother did not have the authority to replace her as a successor trustee, the Surrogate's Court properly determined that the replacement was a valid amendment to the subject trust. The mother was granted the authority to remove a successor trustee at any time, at her discretion, by the unambiguous terms of the subject trust (see Mercury Bay Boating Club v. San Diego Yacht Club, 76 N.Y.2d at 267, 557 N.Y.S.2d 851, 557 N.E.2d 87; see also Matter of Wallens, 9 N.Y.3d at 122, 847 N.Y.S.2d 156, 877 N.E.2d 960; Matter of Chase Manhattan Bank, 6 N.Y.3d at 460, 813 N.Y.S.2d 361, 846 N.E.2d 806; Whitehouse v. Gahn, 84 A.D.3d at 951, 922 N.Y.S.2d 546).

*3 In light of the foregoing, we need not address the parties' remaining contentions.

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Marzano Lawyers PLLC’s appellate group successfully represented the appellee in Grasson v. Bd. of Educ., 11-5295-cv in dismissing the appellant’s interlocutory appeal. The 2nd Circuit clarified the exception to the FRAP 1291 finality rule and held that an interlocutory appeal on the basis of FRCP Rule 60(b) will be jurisdictionally barred unless the district court assumes jurisdiction and power to act when neither exists. The Circuit decision in Rineiri v. News Syndicate Co, 385 F.2d 818 left an opening for this appellant to seek appellate jurisdiction because the District Court granted a Rule 60(b) motion that was brought within one year but four months after the decision that the plaintiff sought to vacate.

This decision closes that opening and holds that so long as the district court had jurisdiction pursuant to Rule 60(b), an appeal will be barred, and the circuit will not address any improprieties within that decision.

Defendants Board of Education of the Town of Orange and various individually named board members appeal from the grant of plaintiff Robert Grasson's motion pursuant to Fed. R. Civ. 60(b) to vacate the award of summary judgment against him on claims arising from his termination as a public school bus driver, due to his failure to file an opposition. We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to dismiss the appeal.

The parties do not dispute that the order reinstating the case is of a type normally barred from immediate appellate review. See 28 U.S.C. § 1291 (affording appellate jurisdiction over “final decisions of the district courts of the United States”); Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir.1996) (dismissing interlocutory appeal of denial of Rule 60(b)(4) motion); see also Richardson–Merrell, Inc. v. Koller, 472 U.S. 424, 430, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) (observing that “[i]mmediate review of every trial court ruling ... would impose unreasonable disruption, delay, and expense” and “would also undermine the ability of district judges to supervise litigation”). For purposes of 28 U.S.C. § 1291, “final decisions” are those that end litigation on the merits. See, e.g., Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). Because “[t]he order at issue in this case has no such effect” and, indeed, “ensures that litigation will continue in the District Court,” it is not “final” and thus not appealable under § 1291. Id.

Defendants do not contend that a statutory exception to the “final decision” rule applies. See 28 U.S.C. § 1292(a)-(b); see also Fed.R.Civ.P. 54(b). Rather, they submit that interlocutory appeal is authorized by Rinieri v. News Syndicate Co., 385 F.2d 818 (2d Cir.1967), where we observed that “the law is settled that if the District Court assumes jurisdiction and power to act under [Fed.R.Civ.P. 60(b) ] where neither exists, an appeal will lie from its order vacating the original order.” Id. at 821; see also Thorp v. Scarne, 599 F.2d 1169, 1172 n. 2 (2d Cir.1979) (noting “line of *99 cases upholding the appealability of district court orders granting relief from a final judgment, purportedly under Fed.R.Civ.P. 60(b), where the district court has improperly assumed jurisdiction and power to act”). Rinieri, however, is a circumscribed holding not applicable in these circumstances.1

The Rinieri plaintiff sought to have his libel action “reinstated almost two and a half years after it was ordered dismissed for lack of prosecution.” 385 F.2d at 819. On appeal from the grant of reinstatement, we noted that (1) the motion could not have been granted pursuant to Rule 60(b)(1) because it was brought “more than a year after the entry of the judgment or order,” Fed.R.Civ.P. 60(c)(1); and (2) the grounds for relief did not bring the motion “within the extremely meagre scope ... of Rule 60(b)(6),” Rinieri v. News Syndicate Co., 385 F.2d at 822 (internal quotation marks omitted). Thus, because the district court had “acted without any basis in law, disregarding the limitations” in Rule 60(b) entirely, we concluded that it “lacked jurisdiction to act and th[e] order [wa]s appealable.” Id. (holding question of jurisdiction “necessarily included” in merits of appeal).

Here, there is no question that “the trial court had the power under Rule 60(b)[ ] to grant the relief requested” by plaintiff. Cavalliotis v. Salomon, 357 F.2d 157, 159 (2d Cir.1966) (emphasis added) (dismissing interlocutory appeal from grant of motion that facially qualified for relief under Rule 60(b)(6)). Plaintiff moved to vacate the award of summary judgment within four months of its issuance, bringing the motion within the one-year time limit applicable to Fed.R.Civ.P. 60(b)(1) (allowing relief from judgment based on “mistake, inadvertence, surprise, or excusable neglect”).

While defendants contend that the district court “made factual findings that precluded it from granting the motion to vacate,” Appellants' Reply Br. 4, these findings, at best, bear upon the propriety of awarding relief, and not the court's authority to do so. Thus, even if the court's characterization of plaintiff's counsel's failure to oppose summary judgment as “inexcusable,” “unacceptable,” and “indefensible,” Ruling on Mot. To Vacate, Grasson v. Bd. of Educ., 09–cv–1584 (D.Conn. Nov. 21, 2011), ECF No. 73, and of counsel's arguments in support of the ensuing motion as “implausible,” id., might suggest an abuse of discretion in granting the motion, see generally Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 387, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (discussing concept of “excusable neglect” within context of “party's failure to comply with a court-ordered filing deadline”), such circumstances are not enough under Rinieri to afford us jurisdiction to review the matter at this time. If necessary, defendants' challenge to the Rule 60(b) vacatur, along with their asserted right to a judgment against plaintiff, “may be effectively vindicated following final judgment.” Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d at 541.

Where deeds are void, on the ground of absolute fraud, they are to be considered as void ab initio, and are not allowed to stand as security to the grantee, for advances he may have made, or responsibilities he may have entered into, on account of them. Where the grantor of a deed, made to defeat creditors, afterwards becomes a bankrupt, the grantee is accountable for the rents and profits, subsequent to the act of bankruptcy, or from the time when the right of the creditors to call him to account accrued, and not before. Sands v. Codwise, 4 Johns 536, 536 [1808]

The Appellate Division, Second Department unambiguously avowed that “a deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid.” GMAC Mortgage Corporation v. Chan, 56 A.D.3d 521, 522 [2nd Dept. 2008]. In GMAC, the property was owned jointly by three brothers. One of the three executed a deed conveying the property to himself and one of his siblings leaving the third off the deed. The two brothers sans the third then obtained a loan from GMAC secured by a mortgage on the subject property. The Court refused to reverse the lower court’s denial of Plaintiff’s motion for summary judgment because there were triable issues of fact as to the validity of the deed and the subject mortgage. The Court ruled that if the deed is forged then the mortgage based on this deed is invalid.

In Cruz v. Cruz, 37 A.D.3d 754 [2nd Dept. 2007], the same Court affirmed the lower court’s cancellation of a deed and mortgage when one sibling executed a deed conveying to himself a premises owned jointly by six surviving children of the decedent. Milton Brown, the fraudulent signatory to the deed, inherited a one sixth interest in property left by his intestate parent. Mr. Brown conveyed the entire plot to himself and obtained a loan secured by a mortgage on the property from defendant Long Beach Mortgage Company. Mr. Brown died leaving title to the property in dispute.

The First Department does not vacillate from this long standing precept of law. In Wu v. Wu, 288 A.D.2d 104 [1st Dept. 2001], the Court held that a forged deed is void and conveys no title. In an action to impose a constructive trust, Plaintiff Yin Wu alleged that his brother forged his name on a deed to property jointly held by them and fraudulently conveyed title to his estranged wife in exchange for her relinquishing her right to seek maintenance and child support. The First Department reversed the motions court’s dismissal of plaintiff’s action;

A forged deed is void and conveys no title (citations omitted). A person cannot be a bona fide purchaser through a forged deed since the forger has no title to convey in the first instance (citations omitted). Real Property Law § 266 applies to fraud situations that are voidable, not those which are void such as here where a forged deed is alleged. Wu v. Wu, 288 A.D.2d 104, 105 [1st Dept. 2001]

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On numerous occasions, courts have stressed that real property devolves at the moment of death directly to the statutory distributees, legatees, or heirs at law without any necessary action on their part. Thus, in Matter of Torricini, 249 A.D.2d 401 [2nd Dept. 1998], petitioner sought authorization to sell real property specifically devised to decedent’s three children in equal shares to hold as tenants-in-common. Petitioner brought an action for a partition sale and the Surrogate declined to exercise jurisdiction of any property specifically devised because it was not part of the administrable estate. The Appellate Division affirmed the Surrogate’s decision and held, “that title to subject real property passed directly to the decedent’s children at the time of her death. Accordingly the Surrogate properly declined to retain jurisdiction over any issues concerning the partition or sale of the specifically devised property [.]”

A distributee or a legatee need not take any action to vest the property into them self. Even if the estate escheats to the State, a public administrator is permitted to sell real property, if needed, for the purpose of paying debts without need for any preceding act to vest the property into the State. Therefore, the Surrogate’s Court in In re Clark’s Estate, 69 Misc. 2d 498 [Sur. Ct. 1972] denied granting an order directing sale of real property that vested in the State because;

Upon death the title to real property never lapses but vests in someone - distributee, specific legatee, residuary legatee, trustee, or in the case of intestate death without heirs, the State. In re Clark’s Estate, 69 Misc. 2d 498, 499 [Sur. Ct. 1972]

In DiSanto v. Wellcraft Marine Corp., 149 A.D.2d 560 [2nd Dept. 1989], husband bequeathed his estate to his wife and to his issue if wife pre-deceased them. The wife pre-deceased the issue, and the estate comprised of parcels of property vested in the decedent’s three sons and daughter. Defendant, Wellcraft Marine, obtained a judgment against Edward Milano, one of the three sons, in an unrelated action and filed a notice of pendency on the parcels of property held by the estate of Harry Milano. Wellcraft’s notice of pendency declared that an action would be commenced against the executor of the estate and the estate itself. The property was subsequently transferred by the executor on behalf of all legatees to the Disantos’ who brought an action against Wellcraft to quiet title into themselves. The DiSantos’ claimed that the notice failed to apprise them of the action against the legatees. The Supreme Court held that Edward Milano had a one-quarter interest in the properties and that Wellcraft held a lien on his interest.

[Wellcraft] has an enforceable lien against the DiSantos’ property to the extent of the one-quarter interest in the property formerly held by Edward J. Milano. As a rule, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death (citations omitted). Unless otherwise directed by the will, an executor takes no title to the property of the testator since title vests in the devisees subject to the necessities of administration of the estate (citations omitted). The power to sell property, without the existence of a valid trust over the proceeds, vests no title in the executor. Rather, the property passes to the devisees subject to the execution of the power to sell by the executor (citation omitted). DiSanto v Wellcraft Marine Corp., 149 AD2d 560, 562 [2d Dept. 1989]

The Nassau County Surrogates Court followed the same line of reasoning in In re Enrique Printing and Publishing Co., Inc. 26 Misc.3d 1035 [Sur. Ct. 2009] when it rejected the administratix’ attempt to waive her interest in property vested in her when the decedent died intestate. The judgment creditor in this action sought an order directing the sale of real property to satisfy a judgment docketed in Queens County. The petitioner creditor alleged that the court direct the sale of the property because the administratrix and sole distributee is not a recorded deed holder. The Court directed the petitioner creditor to bring an enforcement action pursuant to CPLR 5221 rather than a sale of the subject premises.

While the administratrix’s answer admits the petitioner’s allegation that title to the realty vested in her on the decedent’s death, she incorrectly concludes that since she did not take “legal title” (presumably by a deed) she is no longer vested. However, taking some affirmative act by a distributee of realty is completely unnecessary since real property of the decedent descends immediately upon death to his distributees or devisees. In re Enquire Printing and Publishing Co., Inc., 26 Misc 3d 1035, 1037 [Sur. Ct. 2009]

The Court directed the County Clerk to docket the judgment against the real property vested into and owned by the administratix.

Taken together, these cases serve to buttress a well settled and long recognized tenet of law. Title to real property vests in distributees or legatees upon the death of the decedent by operation of law without the necessity for any act on the part of the legatee, devisee, or distributee.

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A motion to quash or vacate is the exclusive vehicle to challenge the validity of a subpoena or the jurisdiction of the issuer of the subpoena. Ayubo v Eastman Kodak Co., Inc., 158 AD2d 641 [2d Dept 1990].

CPLR 3120 (4) provides, inter alia, that “The notice or subpoena duces tecum shall specify the time, which shall be not less than twenty days after service of the notice or subpoena.” CPLR 3120 (4). In Velez v Hunts Point Multi-Serv. Ctr., Inc., the court expanded on the requirements of CPLR 3120(4) coupled with the notice requirements of CPLR 3101(a)(4):

“Nothing in the amendments to CPLR 3120, however, dispenses with the general requirement of CPLR 3101(a)(4) that, where disclosure is sought from a nonparty, the nonparty shall be given notice stating the circumstances or reasons such disclosure is sought or required. The purpose of such requirement is presumably to afford a nonparty who has no idea of the parties' dispute or a party affected by such request an opportunity to decide how to respond.” Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 109-10 [1st Dept 2006]

Generally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence. Matter of Terry D., 81 NY2d 1042, 1044 [1993] citing People v. Gissendanner, 48 N.Y.2d 543, 551. “Rather, its purpose is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” Matter of Terry D., 81 NY2d 1042, 1044 [1993] citing Matter of Constantine v. Leto, 157 A.D.2d 376, 378.

Any person whose attendance is compelled by a subpoena, whether or not actual testimony is taken, shall receive for each day's attendance fifteen dollars for attendance fees and twenty-three cents as travel expenses for each mile to the place of attendance from the place where he or she was served, and return. There shall be no mileage fee for travel wholly within a city. McKinney's CPLR § 8001(a)

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In trial court, parties ignore motions, and other requests of the court to their detriment. An appeal is a request by the loser to a higher court seeking a review of decisions and orders, and judgments made by a lower court judge. Parties who ignore motions etc. in trial court will usually concede on default, the relief sought by the movant. This is generally not the case in a New York appellate court.

An appeal is taken by filing a Notice of Appeal and the appeal is perfected when the appellant takes all steps required by the Court to get his/her case on the court’s calendar. Generally speaking, this usually requires the submission of a record and appellant’s brief. The burden then shifts to the appellee/respondent to file an Appellee/Respondent’s brief addressing points raised by the appellant in his/her brief.

A New York Appellate court will generally review the record and all briefs, before deciding a case. Although it is possible to emerge victorious even if a respondent does nothing, it is an extremely risky position to take.

If you’re the appellee/respondent then it is safe to assume that you won the underlying basis for the appeal. Remaining silent on the appeal allows your adversary to present arguments and support for why you should have actually lost in trial court. If the appellate court does not hear from you, then they are free to accept the appellant’s arguments and rule against you, thereby, declaring you the loser when you thought you had won. Remaining silent and doing nothing in a case appealed against you is precarious if you care about preserving your victory.

If you’ve been served with an appellate brief in your case, it is strongly advisable for you contact us, or another New York Appellate lawyer of your choosing. The time to respond to an appellant’s brief is rather short.

]]>Mon, 13 Feb 2012 00:00:00 GMTBlogshttp://newyorkappealslawyers.com/lawyer/2012/02/10/New-York-Appeals-Survival-Guide/What-is-an-interlocutory-Appeal-in-New-York_bl3470.htm
An appeal is a request to a higher court to review decision(s) made by a lower court. Many appeals are brought after a trial has been held, and the trial judge’s many decisions are submitted to an appellate tribunal for review. Appeals can also be brought, however, on an interlocutory basis. Very simply put, an interlocutory appeal is one which is brought after commencement, but prior to the final determination or termination of an action. Appellate Courts and their powers are creatures of statute. These statutes serve to limit the jurisdiction of appellate courts (Federal and State), and an appellate lawyer in New York must comply with strict rules to ensure that an appealable order first vests jurisdiction into the appropriate appellate court.

In New York State Courts, an interlocutory order that “involves some part of the merits;” or “affects a substantial right” may be appealed as of right. This language contained in the midst of various other factors in Article 57 of the Civil Practice Law and Rules, has been interpreted broadly and can include a multitude of decisions and orders in trial court. A denial of a CPLR 3212 summary judgment or of a CPLR 3211 motion to dismiss is perhaps the most common interlocutory appeal taken as of right. In Federal Circuit Court, the rules vary and most interlocutory appeals are not permitted as of right. Stay tuned for a discussion of interlocutory appeals in Circuit Courts.

]]>Fri, 10 Feb 2012 00:00:00 GMTBlogshttp://newyorkappealslawyers.com/lawyer/2012/02/08/New-York-Appeals-Survival-Guide/How-much-do-appeals-cost-in-New-York-State-Courts_bl3467.htm
New York Appellate practice comes at a cost to the lawyer and the client.

The cost is often greater for the appellant than it is for the appellee/respondent. The reason for this is the “record on appeal” in an appeal to the appellate division. Keep an eye out for a greater discussion on what constitutes a record on appeal; however, for the purposes of this post, we discuss it only briefly. Also, to be discussed in another post is the difference between electronic record transmission rules in the Federal Circuit Court of Appeals and the Appellate Divisions in state courts.

A record on appeal must be assembled by the appellant and must follow specific rules for completion. An appellant may reproduce the record using, 1) the full record; 2) an appendix; or 3) a joint statement. The 3rd method is the cheapest of the three, but almost never used. It seems patently unfair to ask litigants to agree on a statement of the facts when they’ve already litigated their respective positions for a protracted period of time. The 2nd method is used sparingly, but can be cost effective if an appellate lawyer is secure enough to trust his/her decision not to leave out something important. The appendix method enables the appellant’s lawyer to shrink the size and the cost of the record. Using the appendix method can also shift the cost of reproducing an appellate record to the appellee. The last and most commonly used method in reproducing a record is the full record method. All transcripts, pleadings, decisions on the record etc. are wholly reproduced.

This is where appeals tend to be expensive. Reproducing the record includes making sure all proceedings are transcribed by a court reporter, and then forwarding it in its entirety to a printer. A 500 page record, for instance, can cost up to $4000 dollars to reproduce. Attorneys’ fees in an appeal can be structured either on an hourly basis, or a flat fee basis. Our New York appellate lawyers prefer a flat fee arrangement rather than an hourly arrangement. We’ve learned that most of our clients also prefer this. The flat fee arrangement allows our lawyers to dedicate themselves to the matter without worry for “running the clock.” Clients prefer this because their cost is capped at a specific amount and they have certainty with the respect to their cost on appeal.

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Undue influence is proved by a preponderance of the credible evidence to demonstrate motive, opportunity, and the actual exercise of undue influence. See Matter of Walther, 6 N.Y.2d 49 [1959].

Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another. Matter of Burke, 82 AD2d 260, 269 [2nd Dept. 1981]

The burden of establishing undue influence rests upon the objectant to a Will. However, where there is a confidential relationship between the decedent and the beneficiary of the Will, the mere bequest alone permits an inference of undue influence. Matter of Bach, 133 AD2d 455, 456 [2nd Dept. 1987]

The 2nd Department further elaborated on the tactic utilized by one accused of exercising undue influence upon a testator.

There are two principal categories of undue influence in the law of wills, the forms of which are circumscribed only by the ingenuity and resourcefulness of man. One class is the gross, obvious and palpable type of undue influence which does not destroy the intent or will of the testator but prevents it from being exercised by force and threats of harm to the testator or those close to him. The other class is the insidious, subtle and impalpable kind which subverts the intent or will of the testator, internalizes within the mind of the testator the desire to do that which is not his intent but the intent and end of another [citations omitted]. Matter of Burke, 82 AD2d 260, 270 [2nd Dept. 1981]

Thus, in In Re Elmore’s Will, 42 A.D.2d 240 [2nd Dept. 1973] the Second Judicial Department in a New York appeal, affirmed the Surrogate’s dismissal of the proponent’s petition for probate. Citing the Court of Appeals the Court stated,

[U]ndue influence can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, and a variety of other factors including the opportunity to exercise undue influence.

In finding for the objectant, the Court considered facts’ including the decedent’s failing health due to a terminal illness and the radical change in testamentary intent that diametrically opposed the testator’s wishes in a prior Will. The Court ruled that since the Will was prepared by an attorney associated with the beneficiary, an explanation is called for, “and it is a question of fact for the jury as to whether the proffered explanation is adequate.” In Re Elmore’s Will, 42 A.D.2d 240 [2nd Dept. 1973].

In Matter of Bach, 133 A.D.2d 455 [2nd Dept. 1987], in reversing the Surrogate Court, the Second Department held that where a confidential relationship exists between the beneficiary/drafter of the Will, the mere bequest creates an inference of undue influence. In Bach, the jury could have found that a confidential relationship existed between the deceased and the proponent. The deceased was of advanced age, ceded control of her assets to the proponent, and although the proponent offered an explanation regarding being named the beneficiary, his testimony merely created a question of fact.

Similarly, in Matter of Pollock, 64 N.Y.2d 1156 [1985], the Court of Appeals affirmed a lower court ruling finding triable issues of fact in light of disputed affidavits and testimony regarding the decedent’s condition and the circumstances surrounding the Will and Codicil. Again in Matter of Estate of Delyanis, 252 A.D.2d 585 [2nd Dept. 1998], this Court reversed the Surrogate in finding that the proponents of the Will had both the motive and opportunity to unduly influence the testator and the matter should be submitted to the fact finder for final determination.

In Matter of Estate of Delyanis the testator moved in with her daughter and promptly disinherited her son by altering a prior testamentary instrument. This Court held that the testator living with her daughter, provided the daughter with ample opportunity to change the testator’s mind. This threadbare showing was sufficient to submit the question of undue influence to the jury to determine whether undue influence was actually exercised.

]]>Sun, 15 Jan 2012 00:00:00 GMTBlogshttp://newyorkappealslawyers.com/lawyer/2012/01/08/New-York-Appeals-Survival-Guide/How-do-I-take-an-appeal-in-my-New-York-case_bl3240.htmFrom time to time, we will post entries that deal with the essence of surviving a New York Appeals process, the need to hire an NY Appellate lawyer, and the ins and outs of appellate practice. We wecome you to visit our site and contact us with a any questions and comments. This information is not intended and should not be relied upon as legal advice. You should discuss your specific matter with a New York appellate lawyer.

Taking an appeal in New York is generally accomplished by the timely filing of a document called the Notice of Appeal. In most New York appellate courts the notice of appeal is filed within thirty days of a specified judicial event. In most New York state court civil cases for instance, a lawyer or litigant must file a notice of appeal within thirty days of receipt of a judgment, or decision and order. In a criminal action, the date of sentencing usually starts the clock to file a Notice of Appeal. An appeal taken as of right from the United States District Court to the Second Circuit Court of Appeals must be filed within thirty days after the judgment or order appealed from is entered.

The Notice of Appeal is the document that provides the appropriate appellate court with jurisdiction. Not filing it in a timely fashion may very well be a fatal blow to your New York lawsuit. If you’re unsure of whether to appeal a decision, order, or judgment, it is imperative that you consult a New York trial or appellate lawyer immediately. A properly drafted notice of appeal filed in a timely fashion will allow you more time to decide whether to perfect your appeal.